‘Serious concern’ over cost of Court of Protection proceedings

The cost of Court of Protection (CoP) welfare proceedings to local authorities is a serious concern and there are considerable variations between English and Welsh local authorities in the number of welfare cases brought to the Court.

Those are some of the findings of new research by the School of Law and Politics which sought information on the typical costs and duration of CoP cases in response to concerns around the accessibility and efficiency of the Court and claims that welfare proceedings could be very costly and slow.

Established by the Mental Capacity Act 2005, the CoP makes decisions on behalf of people deemed to lack the mental capacity to do so in relation to their welfare, finances and property. Issues of deprivation of liberty also form a substantial part of the CoP's case law.

Using information from local authorities about their involvement in CoP welfare cases during 2013-14, the Cardiff researchers examined how often local authorities were involved in welfare litigation in the CoP, how much CoP welfare cases cost local authorities, and how long CoP welfare cases typically last.

They found that most local authorities in England and Wales had been involved in at least one welfare case in the CoP in 2013-14. However, local authorities in England were involved in significantly more than those in Wales.

Most welfare applications to the CoP are made by local authorities, according to the research findings. Applications by family members, advocates and people who are said to lack mental capacity are relatively rare. Overall, the number of cases involving the Mental Capacity Act 2005 deprivation of liberty safeguards was low, raising concerns about whether people can effectively exercising rights to appeal against their detention.

Notably, the research confirms that the cost of CoP welfare proceedings to local authorities is considerable, with half of all cases in the study costing £8,150 or more. The study also corroborates widely expressed concerns that welfare litigation in the CoP can be very long running with the typical duration of a CoP welfare case was found to be 12 months. 

The research team said: "The high cost of CoP proceedings is a matter of serious concern and the underlying reasons for the high cost and lengthy duration of CoP proceedings require urgent investigation.

 "Those responsible for monitoring health and social care in general, and the deprivation of liberty safeguards in particular, should ensure that authorities understand and comply with obligations to refer cases to the CoP in line with legal guidance."

The report Use of the Court of Protection's welfare jurisdiction by supervisory bodies in England and Wales is available here.  The research was funded by the Nuffield Foundation, and the research team included three undergraduates funded jointly by the Cardiff Undergraduate Research Opportunity Programme (CUROP) and the Centre for Social Care Law in the School of Law and Politics.